Honorable Ernestine V. Glossbrenner Opinion No. 

Chairman 

public Education Committee Re: A school 

Texas House of Representatives use of local 

JM-1051 

district's 

funds for 

career ladder payments 

(RQ-1687) 

P. 0. Box 2910 

Capitol Building, Room 302D 

Austin, Texas 78768-2910 

Dear Ms. Glossbrenner: 

You ask: 

If the state allotment designated for 

support of the career ladder (Section 16.158, 

Education Code) will not fully fund the 

career ladder supplements, can a school 

district use monies generated locally to 

allow the school district to meet the 

payments for career ladder levels 2, 3~, and 4 

of $2,000, ~$4,000, and ,$6,000 respectively 

(Section 16.057, Education Code), without 

implementing stricter local performance criteria? 

Chapter 13, subchapter E, of the Education Code provides for the assignment of each public school teacher to 

one of four career ladder levels based on performance, 

experience, job-related education, advanced academic 

training and job assignments. Section 16.057 provides for 

the supplementing of salaries of teachers at career ladder 

levels two through four as follows: 

(a) Except as provided by Subsection (c) 

of this section, each teacher on level two, 

three, or four of a career ladder is entitled 

to the following annual supplement in 

addition to the minimum salary set by this 

subchapter: 

Level 2 . . . . . . . . . . $2,000 

Level 3 . . . . . . . . . . $4,000 
Honorable Ernestine V. Glossbrenner - Page 2 (JM-1051) 

Level 4 . . . . . . . . . . $6,000 

(b) If the district pays more than 

state minimum salary prescribed by 

subchapter, the teacher is entitled to 

career ladder supplements in addition to 

amount otherwise paid by the district for the 

teacher's step. 

the 

this 

the 

the 

(cl If the allotment under Section 16.158 

of this code that is designated for support 

of the career ladder will not fully fund the 

supplements under this section: 

(1) the district may reduce the 

supplements to not less than the 

following: 

Level 2 . . . . . . . . . . $1,500 

Level 3 . . . . . . . . . . $3,000 

Level 4 . . . . . . . . . . $4,500 

or; 

(2) provide for stricter performance 

criteria than that provided under Section 

13.302 of this code, subject to the 

approval of,the State Board of Education: 

or 

(3) take action under both Subdivisions (1) and (2) of this subsection. 

Section 16.158 provides for q'allotments" to fund the 

career ladder supplements as follows: 

(a) Each district is entitled to an allotment for education improvement and support 

of the career ladder equal to its unadjusted 

average daily attendance multiplied by the 

following amount or a greater amount provided 

by appropriation: 

(1) $100 for the 1984-1985 school 

year: 

(2) $120 for the 1985-1986 school 

year: and 

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Honorable Ernestine V. Glossbrenner - Page 3 (JM-1051) 

(3) $140 for the 1986-1987 school 

year and each school year thereafter. 

(b) A district may expend 25 percent of 

the allotment for any legal purpose, shall 

expend 25 percent of the allotment for 

payment of salaries for personnel other than 

classroom teachers, and shall expend 50 

percent of the allotment for career ladder 

salary supplements. 

(b-l) Expired. 

(c) From the funds designated for that 

purpose, the, ,district shall supplement the 

salary of each teacher above level one on the 

career ladder. The district shall decide the 

amount of supplement to be provided at each 

career ladder level. 

(d) Money received under this section may 

not be used to supplement the salary of an 

employee for directing cocurricular or extracurricular activities. 

The funding of the career ladder supplements is a part 

of the Foundation School Program established under chapter 

16 of the Education Code. The purpose of the Foundation 

School Program is to "guarantee that each school district in 

the state has 'adequate resources to provide each eligible 

student a basic instructional program suitable to his 

educational needs." Educ. Code 5 16.002. Section 16.051 

provides that in order to receive financial support from the 

Foundation School Fund, school districts must comply with 

the standards set out in subchapter B of chapter 16 

including the provisions of section 16.057, quoted above, 

providing for career ladder supplements. 

In your question; in which you ask about courses of 

action available to a school district where the "state 

allotment designated for support of the career ladder 

(Section 16.158, Education Code) will not fully fund the 

career ladder supplements," we presume that by "state 

allotment" you mean the 50% of the "allotment for education 

improvement and support of the career ladder," which 

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Honorable Ernestine V. Glossbrenner - Page 4 (JM-1051) 

subsection (b) of section 16.158 provides shall be expended 

for career ladder supplements.1 

Section 16.057(a) sets out specific dollar amounts to 

which teachers at career ladder levels two, three, and four 

are entitled. We understand you to ask whether section 

16.057(c), quoted above, provides the exclusive alternatives 

available to a district when the section 16.158 allotment 

is insufficient to pay the supplements or whether a district 

may use other available funds to pay the salary supplements. 

We do not think that subsection (c) was intended to prohibit 

a district from paying the supplements out of other 

available funds. 

Subsection (a) states that teachers are entitled to 

specific supplement amounts except in the instance of an 

insufficient allotment. Subsection (c) provides for 

reduced supplement amounts and for stricter performance 

criteria for supplement eligibility. We read the reference 

to the insufficiency of the allotment as a prerequisite to 

the availability of the alternatives set out in subsection 

Cc) - In other words, we think that the express meaning of 

subsections (a) and (c) is that a district is without 

authority, other than as provided in subsection (c), to 

lower the amount of the supplements or to raise the criteria 

for receiving the supplements. We do not find any language 

in these provisions that prohibits the use of other 

available funds to pay the supplement. 

'Several factors support our reading of section 

16.057(c). First, nothing else in the controlling statutes 

suggests that a district may not use available money other 

than allotment money to pay the supplements. Substantially 

all of the controlling provisions were enacted as part of 

House Bill 72. Acts 1984, 67th Leg., 2d C.S., ch. 28, at 

117. The provisions of subsection (c) of section 16.057, 

which are in question here, were added to the language of 

that bill only after it already contained substantially all 

of the other provisions discussed. See Bill file, House 

1. See Educ. Code 55 16.251, 16.252, 16.254; see also 

Acts 1987, 70th Leg., 2d C.S., ch. 78, art. III, 5 1, at 

632. 

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Honorable Ernestine V. Glossbrenner - Page 5 (JM-10513 

Bill 72, 67th Leg., 2d C.S. (1984).2 If the addition of 

subsection (c) were intended to limit the use of other 

funds, we think the legislature would have expressed that 

intent. 

Moreover, we think that construing subsection (c) to 

reouire districts, whose allotments are insufficient to meet 

the subsection (a) supplements, to either lower the supplement, raise performance criteria, or both, without leaving 

them the option of making up the subsection (a) supplement 

amounts with non-allotment monies, would be contrary both to 

the purpose of the career ladder program, which is~ to 

improve teaching quality by providing monetary incentives to 

more qualified and better performing teachers, and to the 

overall spirit of House Bill 72. 

You do not ask and we do not address in detail what 

kinds of "monies generated locally" might be lawfully used 

to help fund the district's career ladder supplements. We 

do note that section 16.253, for example, provides in part 

that "local maintenance funds in excess of the amount 

assigned to a district may be expended for any lawful school 

purpose.1' See also Educ. Code 5 20.48. 

A brief 'submitted by the Texas Education Agency3 in 

response to your request notes that an administrative rule 

adopted~ by the agency, 19 T.A.C. 5 149.71(l)(4), would limit 

the use of other available funds for the section 16.057 

supplements. 

In the event that funds designated as the 

allotment for career ladder salary supplements are deemed insufficient for placement 

2. Hence, the language in section 16.158(c) providing 

in part that "the district shall decide the amount of 

supplement to be provided at each career ladder level," 

which language was in both the'original bill as introduced 

and in the enacted version, must be read in light of the 

later added supplement provisions of section 16.057. 

3. The Texas Education Agency is generally referred to 

by statute as the Central Education Agency. It includes, 

inter alia, the State Board of Education and the State 

Commissioner of Education. See, e.a., Educ. Code 5 11.01 & 

u. 

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Honorable Ernestine V. Glossbrenner - Page 6 (JM-1051) 

and/or maintenance of all teachers meeting 

the state-mandated minimum criteria for 

selection and/or maintenance on the teacher 

career ladder, the local district may fund 

additional career ladder salary supplements 

from local or other funds permitted by law 

and State Board of Education rules effective 

with the 1985-1986 school year, provided that 

the following requirements have been met: 

(A) that funds available for any legal 

purpose in accordance with the Texas 

Education Code, 516.158, have been fully 

exhausted in the payment of teacher career 

ladder salary supplements; and 

(B) that the local school district 

demonstrates its intent to utilize career 

ladder supplements as a means of identifying and rewarding excellence in teacher 

performance as opposed to a salary 

supplement for all teachers meeting the 

minimum requirements by establishing in 

written policy one or more requirements 

for stricter performance as specified in 

subsection (e) of this section. 

Subpart (B) of the provision appears to require that 

before local funding may be used to make up a deficiency in 

the section 16.158 allotment for the career ladder supplements, a district must establish one 'or more requirements 

for stricter performance criteria. See also 19 T.A.C. 

5 149.71(e). We think that to the extent that the Texas 

Education Agency's'rule makes mandatory the establishment of 

stricter performance criteria before local funds can be used 

to make up a shortfall in the section 16.158 allotment for 

the section 16.057, subsection (a), career ladder supplements, the rule exceeds the agency's rule-making authority. 

Agency rules must be within the clear intent of the 

statute and not in excess of the powers delegated. See. 

e.s., Kellv v. Industrial Accident Bd., 358 S.W:2d 874 (Tex. 

Civ. App. - Austin 1962, writ ref'd). We find nothing in 

the Education Code or elsewhere in state law which empowers 

the Texas Education Agency, or its component body, the State 

Board of Education, to require stricter performance criteria 

in particular districts or particular local situations. See 

Educ. Code ch. 13, subch. D (providing for the establishment 

of career ladder appraisal procedures and performance 

p. 5468 
. 

Honorable Ernestine V. Glossbrenner - Page 7 (JM-1051) 

criteria by the State Board of Education), 55 13.302(a) 

(providing that the board shall adopt an appraisal process 

and criteria, and the criteria must be based on "observable, 

job-related behavior, including teachers' implementation of 

discipline management procedures"), 13.302(c) (providing 

that the board shall provide for *Ia uniform training program 

and uniform certification standards for appraisers to be 

used throughout the state"), 13.302(d)(l) (providing that 

"the assessment process may be administered by or under the 

supervision of the Central Education Agency on a statewide 

basis"), 13.304-13.312 (providing for uniform performance 

categories, classes of teaching certificates, criteria for 

entrance into and maintenance of career ladder levels, 

without making any distinctions in such classifications or 

criteria based on particular local situations). See also 

id. 55 11.24 (board's rule-making authority generally), 

16.005 (commissioner of education to administer Foundation 

School Program in accordance with board rules). Again, 

although section 16.057 provides that local districts may 

with state board approval implement stricter performance 

criteria under the circumstances set out there, we find 

nothing in the agency's statutory rule-making authority 

empowering the agency to require particular districts to 

implement stricter performance criteria before it uses funds 

other than the section 16.058 allotment for salary supplements. 

Finally, we note that the Texas Administrative Code, 19 

T.A.C. 5 149.71(1)(4)(A), requires that local districts 

wishing to use local funds to make up the cost of section 

16.057(a) career ladder supplements where the section 16.158 

allotment for such is insufficient must first exhaust the 

portion of the section 16.158 allotment funds available for 

"any legal purpose.'* We find nothing in the statutory 

scheme governing the career ladder program which authorizes 

the Texas Education Agency to thus restrict the use of local 

funds and accordingly conclude that the provisions of 

subpart (A) also exceed that agency's statutory rule-making 

authority. 

SUMMARY 

In order to meet the cost of career ladder 

supplements in the amounts specified in 

Education Code section 16.057, subsection 

(a), a school district may, without implementing stricter performance criteria under 

chapter 13 of the code, use available local 

funds where the allotment for the career 

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Honorable Ernestine V. Glossbrenner - Page 8 (JM-1051) 

ladder under section 16.158 is insufficient. 

Rules adopted by the Texas Education Agency, 

19 T.A.C. 5 149.71(&)(4)(A)-(B), purporting 

to require a school district whose section 

16.158 allotment is insufficient to first 

exhaust section 16.158 funds available for 

"any legal purposetl and to establish stricter 

performance criteria before using other local 

funds to cover the supplement amounts, exceed 

that agency's statutory 

ity. 

rule-making authorJIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LCU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 5470